Mistake Of Fact

All acts or omission in criminal law which amount to crimes are not punished at all times. In some circumstances, some defences can be raised to free the accused from criminal liability, one of such defences is mistake of fact. This is embodied under 5.25 of the Criminal Code, which provides that:
“A person who does or omits to do an act under an honest and reasonable but mistaken belief in the existence of any state of things is not criminally responsible for the act or omission to any greater extent than if the real state of things had been such as he believed to exist. The operation of this rule may be excluded by the express or implied provisions of the law relating to the subject”.
From the above provision, before a defence of mistake can be successful it must be honest and reasonable. And there would be no greater liability if the mistaken fact were found to be true. In the state V squadron Leader S.I Olatunji (2003) LPELR-3227 (SC), the respondent was the paymaster HQ of the pay and accounting group at the material time. His duty then was to pay all bills referred to him and take instructions from commander P.A.G for all payments approved by the commander. On the 3rd of April, 1996, the cashier brought to him the sum of N10 million in cash with a list of names sent by commander P.A.G on seeing the list, he asked the cashier to explain what the money was meant for. He was instructed to ask the commander, which he did. The commander told him the money was for welfare gifts from the chief of Air staff, when the money was shared he collected N600,000 for himself.
The court held that the respondent know that the money could not be transferable to the welfare account since the approval was not for that purpose. And so when he agreed to disregard the financial procedure by sharing the money meant for short payment of salaries as welfare gift with full knowledge of what it was meant for. The court held that he was not entitled to any default to the charge of stealing.
From the facts and decision of the apex court, it cannot be said that he was honest in his belief, so the issue of mistake cannot avail him. In RV. Gandam (1954) 14 WACA 442, the accused believed that the deceased was a witch and was responsible for causing the miscarriage suffered by his wife. He then killed the decased. The court found that the belief was honest but held that such believe cannot be reasonable and thus a mistake of fact would not apply.
It is the law that where an accused acted under an honest and reasonable belief in a given state of situation which if true would have justified the act he may set up such a credible defense. But the story must be true, in other roads, capable of being believed and not an insult to intelligence.
The test of honest believe which should shore up a defence of mistake rests a priori on whether the accused honestly and in good faith and without any fault or negligence made a mistake in the nature of the situational premise prevailing as at the time, and that shall be determined and related to the circumstances as might reasonably to be expected to affect his mind to induce belief or otherwise of the defence of mistake.
Note that noting is an offence which is done by a person who is justified by law, or who by reason of a mistake of faith believes himself to be justified by law in doing it.

Nkechi Bright – Ewere